Premises Liability

Plaintiff sustained injuries when an air conditioner fell from a window of one of the apartments in defendant=s building. The air conditioner was not installed, removed, cleaned, or maintained by defendant building owner or its employees, and thus the building had no notice of how it had been installed.

Defendants’ motion for summary judgment granted by Appellate Division. Defendants satisfied their burden with uncontroverted evidence that the trench work they had performed at the subject intersection was completed four months before the accident, and as plaintiff’s expert opinion failed to establish that defendant’s trench work was negligent or a proximate cause of plaintiff’s fall.

Plaintiff slipped and fell over broken concrete, which was the alleged result of a failure to maintain an oil fill cap and box embedded underneath the sidewalk. The sidewalk was owned by defendant I&G and previously owned by defendant Murray Hill Property Management. The Court held that there was an issue of fact as to whether the broken sidewalk was latent and undiscoverable, at the time of conveyance, and whether the new owner had a reasonable time to discover and remedy the condition since it was conveyed only a few days before the accident.

Defendant’s motion for summary judgment was denied, and the decision of the Supreme Court reversed.

Plaintiff was injured while participating in member activities at defendant Spa under the supervision of defendant trainer. Defendants argued that plaintiff’s claims were barred by a release that included a covenant against bringing suit for personal injuries incurred in a personal training session.

The Appellate Court held that the motion court’s rejection of plaintiff=s claim was error, because the court=s focus should have been on whether the Spa’s purpose was recreational or instructional rather than the purpose of plaintiff=s activity. The Court held that the training sessions appeared to be ancillary to the recreational activities offered by the Spa, and thus General obligations Law ‘ 5-326, which provides that such a covenant could be void as against public policy and wholly unenforceable, applied.

Regardless of whether the respondent was aware that the planter which fell on the infant plaintiff was not secured to the pillar on which it stood, the infant plaintiff=s act of grabbing the edge of the planter and trying to lift himself up to do a chin-up constituted a superseding cause of such an extraordinary nature that it was not an occurrence which should have been guarded against in the exercise of reasonable care in maintaining the property in a safe condition.

Defendant’s motion pursuant to CPLR 4401 for judgment as a matter of law was denied, and the order of the Supreme Court reversed.

Plaintiff was a maintenance supervisor who was changing light bulbs for the defendant Racquet Club. He was injured when he fell off a ladder, after the Club manager holding it for him suddenly let go while plaintiff was descending.

The Appellate Court held that the trial court=s sua sponte grant of defendant=s motion for judgment at the close of the evidence was error, as the jury could have rationally determined that the Club=s manager had voluntarily assumed a duty of care towards the plaintiff. Further, the jury could have rationally determined that the Club was vicariously liable for its manager=s negligence under a respondeat superior theory.

Judicial Recognition

Presiding Justice A. Gail Prudenti, was the featured speaker at the Columbian Lawyers Association of Brooklyn monthly meeting held on November 7, 2007. Presiding Justice Prudenti spoke on recent developments at the Appellate Division.

Kudos and Professional Recognition

Brooklyn Bar Association President RoseAnn C. Branda was recognized with an award and proclamation by Borough President Marty Markowitz at a countrywide celebration of Italian History Month on October 11, 2007 at the Brooklyn Borough Hall.

Congratulations to Brooklyn Bar Association member Anne J. Swern, who is being honored as one of the Alumni of the Year by Brooklyn Law School. Anne J. Swern, who is the First Assistant District Attorney in Kings County will be honored at a cocktail reception on Thursday, November 29, 2007 at 3 West Club. For further information call (718) 780-7966.

Congratulations to Brooklyn Bar Association Treasurer Domenick Napoletano, who was recognized as the Man of the Year by the Van Westerhout Cittadini Molesi Cultural and Social Club, Inc., at their dinner held on October 14, 2007.

Congratulations to Brooklyn Bar Association member Bruno F. Codispoti who was the recipient of the Distinguished Italian-American Awardfrom the Van Westerhut Cittadini Molesi Cultural and Social Club, Inc. This organization is comprised of individuals who can trace their family to the town of Mola Di Bari in Italy.

Heard On The Street

The Brooklyn Bar Association has received word from the Mayor’s Committee on City Marshals that applications are being accepted from attorneys for appointment as New York City Marshals. City Marshals are independent public officers who do not receive salaries but earn income by enforcing Civil Court orders under detailed rules enforced by the New York City Department of Investigation. Applicants who must be United States citizens and New York City residents must clear a thorough background investigation by the New York City Department of Investigation, successfully complete a DOI training program and examination and be able to obtain a public official’s bond with $100,000 coverage. Applications are available from the Department of Investigation office or on the web at www.nyc.gov/marshals.

Bereavements

The Brooklyn Bar Association marks the passing of Hon. Joseph Dowd, Justice, Supreme Court, Kings County, (Retired) who died on October 6, 2007. At the time of his passing Justice Dowd had been a member of the Brooklyn Bar Association for over forty years.

The Brooklyn Bar Association extends its deepest sympathy to Brooklyn Bar Association member Ben Zalman on the passing of his mother, Violette Zalman in Mid-October.

The Brooklyn Bar Association extends its deepest sympathy to Brooklyn Bar Association staff member Josephine (Bobbi) Frontera on the passing of her brother Michael Declan Hayes on October 17, 2007.

Legal Briefs is compiled and written by Avery Eli Okin, Esq., CAE the Executive Director of the Brooklyn Bar Association and its Foundation.

Items for inclusion in “Legal Briefs” should be sent to aokin@brooklynbar.org, faxed to
(718) 797-1713 or mailed to 123 Remsen Street, Brooklyn New York 11201-4212.

Judicial Recognition

Congratulations to Chief Bankruptcy Judge Conrad B. Duberstein of the Eastern District of New York who despite having retired in 1995 has been recalled every year and was continued to December 31, 2005 by the Judicial Council of the 2nd Circuit and the Board of District Judges of the Eastern District.

Chief Judge Duberstein, who has served since 1984, recently celebrated his 89th birthday and is the oldest Chief Bankruptcy Judge in the country.

Congratulations to Brooklyn Bar Association member Hon. Michelle Weston Patterson who was reelected to office in the Supreme Court, Kings County. Also elected to the Supreme Court this past November were Brooklyn Bar Association members Hon. Eric I. Prus and Hon. Wayne P. Saitta.

Congratulations to Brooklyn Bar Association member Hon. Sarah L. Krauss who was reelected to the Civil Court of the City of New York and been designated as an Acting Supreme Court Justice in Kings County.

Congratulations also to Brooklyn Bar Association members Gerald Dunbar, Evelyn LaPorte and Bernard J. Graham who were elected in November to the Civil Court of the City of New York. Associate member George Silver, who was elected to the Civil Court in New York County, is expected to be assigned to the Brooklyn Civil Court.

Brooklyn Bar Association Volunteer Lawyers Project, Inc.

New Staff Members

The Brooklyn legal community welcomes Jeannie Costello, who was hired in October by the Brooklyn Bar Association Volunteer Lawyers Project, Inc., to be the new Executive Director of the Project. Prior to joining the VLP, Ms. Costello worked in the national law firm Sonnenschein Nath & Rosenthal, LLP, where she concentrated her practice in the areas of intellectual property and entertainment law.

The Brooklyn legal community also welcomes Liz Padilla, Esq., who was appointed on December 20th as the Pro Bono Coordinator of the VLP. Formerly, Ms. Padilla had worked at the Family Law Center.

Kudos And Professional Recognition

Congratulations to associate member Charles Eric Gordon of Plainview, Long Island, who was elected as the First Vice President of Professional Investigators, Inc., a not for profit fraternal and educational organization.

Professional Announcements

Brooklyn Bar Association Trustee and Editor-in-Chief of the Brooklyn Barrister Andrew M. Fallek has announced that Joseph Fallek, P.C., has relocated its office to 110 Wall Street, 19th Floor, New York, New York 10005. Telephone number 212-797-4700
Brooklyn Bar Association member Andrew S. Garson has announced that his law firm Garson Gerspach DeCorato & Cohen, LLP has relocated to 110 Wall Street, 10th Floor, New York, NY 10005. The telephone, fax and e-mail addresses are unchanged. Telephone number is 212-742-8700.

Word has been received at the Brooklyn Bar Association that Andrea F. Composto, the Chair of the Young Lawyers Section, will continue in the general practice of law as the third generation in the new law firm which will be known as The Law Offices of Composto & Composto, located at 142 Joralemon Street, Brooklyn, New York 11201, telephone number 718-875-5199.

Court Notes

On November 24, 2004, Presiding Justice A. Gail Prudenti announced the appointment of Robert P. Guido to the newly created position of Special Counsel for Grievance Matters for the Appellate Division, Second Judicial Department. Prior to his appointment, Mr. Guido had served for more than twenty-one years with the Grievance Committee of the 10th Judicial District, where he had been its Chief Counsel for the last three years.

Family Matters

Congratulations to David Jon Doyaga, son of Brooklyn Bar Association Past President David J. Doyaga and Kerri Doyaga, who passed the July, 2004 New York State Bar Examination.

Bereavements

The Brooklyn Bar Association extends its deepest condolences to Andrea Katz Ritscher, Esq., and family on the passing of her father Brooklyn Bar Association member Alan B. Katz on November 15, 2004. Alan Katz, who is also survived by his widow Harriette Katz and son Bruce Katz, an attorney in Arlington, Virginia, had been a member of the Brooklyn Bar Association for more than 37 years at the time of his passing.

Legal Briefs is compiled and written by Avery Eli Okin, Esq., CAE, the Executive Director of the Brooklyn Bar Association and its Foundation. Please send items for inclusion in the “Legal Briefs” column to his attention at the Brooklyn Bar Association, 123 Remsen Street, Brooklyn, New York 11201-4212.

For your convenience and to ensure the inclusion of all time sensitive items, you may fax an item to (718) 797-1713 during regular business hours or e-mail to Avery Eli Okin, Esq., CAE.

Judicial Recognition

Congratulations to Hon. Sondra Townes, formerly a Justice of the Appellate Division, Second Department, who was appointed by President George W. Bush to the United States District Court for the Eastern District of New York.

Congratulations to Hon. Dora Irrizary who was sworn in last month as a United States District Court Judge for the Easter District of New York.

Brooklyn Bar Association member Justice Muriel J. Hubsher was feted at a retirement reception on September 28, 2004 at Tavern on the Green.

Brooklyn Bar Association member and Supreme Court Justice Hon. Jules Spodek will be recognized at a retirement dinner which has been scheduled for Tuesday evening, November 16, 2004 at the El Caribe Country Club. For further information and to make reservations for this event, contact Andrea E. Bonina at (718) 522-1786.

Kudos And Professional Recognition

Congratulations to Brooklyn Bar Association Trustee Domenick Napoletano, who serves as Chair of the Brooklyn Bar Association Attorney-Client Fee Dispute Resolution Program Committee, who will be a featured presenter at the celebration of Mediation Settlement Day on Thursday, October 21, 2004. Trustee Napoletano’s talk will be part of a one-hour free CLE Program which will be hosted at the Civil Court at 141 Livingston Street, Room 306. To register for this program contactGail R. Davis at (718) 262-7266 or gdavis@courts.state.ny.us.

Heard on the Street

Word has reached the Brooklyn Bar Association that the Red Mass will be celebrated by the Most Reverend Nicholas DiMarzio, Ph.D., D.D., Bishop of Brooklyn, on Thursday evening October 15, 2004 at 5:00 P.M., at St. Charles Borromeo Roman Catholic Church.

The New York City Department of Finance has announced that it intends to recruit up to sixty Administrative Law Judges to adjudicate parking violations. Attorneys who reside in New York City, and have been admitted for three or more years, are eligible for the full-time and part-time positions which are located throughout the five boroughs. Application forms are available fromHelene Matles, New York City Department of Finance, Adjudication Division, 66 John Street, 3rdFloor, New York, NY 10038. Telephone number (212) 361-8246.

Bereavements

The Brooklyn Bar Association extends its sincerest condolences Charles Hurowitz and family on the passing of his mother Susan Hurowitz, the widow of the late Hon. Barry Hurowitz, who died on September 29, 2004.

Legal Briefs is compiled and written by Avery Eli Okin, Esq., CAE, the Executive Director of the Brooklyn Bar Association and its Foundation. Please send items for inclusion in the “Legal Briefs” column to his attention at the Brooklyn Bar Association, 123 Remsen Street, Brooklyn, New York 11201-4212.

For your convenience and to ensure the inclusion of all time sensitive items, you may fax an item to (718) 797-1713 during regular business hours or e-mail to Avery Eli Okin, Esq., CAE.

Judicial Recognition

Congratulations to Brooklyn Bar Association member Hon. Bruce M. Balter who was the recipient of the Man of the Year Award presented by the Court Attorneys Association of the City of New York. The award, which was presented at their annual dinner on June 2, 2004, was in recognition of Justice Balter’s elevation to the Supreme Court bench.

Kudos And Professional Recognition

Congratulations to long-standing Brooklyn Bar Association member Richard J. O’Keeffe who, earlier this year, was appointed as National President of the American Board of Trial Advocates, a leading civil trial group in the country.

Brooklyn Bar Association Executive Director Avery Eli Okin, Esq., CAE, was elected as a Vice President of The 100 Year Association of the City of New York at the Annual Meeting of that Association on July 28, 2004. In addition, at that time he was reappointed as the Chair of the College Scholarship and Public Service Awards Committees.

Congratulations to Brooklyn Bar Association staff member Thomas Visco and his wife Wilma whose son, Lieutenant Junior Grade Joseph S. Giammanco of the United States Coast Guard, took command of his first ship, the USCGC ALBACORE (WPB 87309). Lieutenant Giammanco assumed command on July 16, 2004.

Professional Announcements

Brooklyn Bar Association member Susanne Gennusa has announced the relocation of her office for the practice of law to 100 Park Avenue, 20th Floor, New York, NY 10017 telephone number (212) 867-3345, e-mail: sgennusalaw@msn.com.

Brooklyn Bar Association member David M. Schwartz has announced the relocation of the Schwartz law firm to 5402 Third Avenue, Brooklyn, New York 11220 – telephone number

Family Matters

Hemalee Patel and husband Unmesh Kher are delighted to announce the birth of their daughter Arushi Patel Kher, who was born on June 8, 2004.

Bereavements

The Brooklyn Bar Association extends its sincerest condolences to Hon. Fern Goldstein and family on the passing of her husband Burton Goldstein, whose funeral was on August 3, 2004.

The Brooklyn Bar Association extends its deepest sympathy to Susan B. Master and family on the passing of her grandmother Betty Joseph who died on August 3, 2004.

Legal Briefs is compiled and written by Avery Eli Okin, Esq., CAE, the Executive Director of the Brooklyn Bar Association and its Foundation. Please send items for inclusion in the “Legal Briefs” column to his attention at the Brooklyn Bar Association, 123 Remsen Street, Brooklyn, New York 11201-4212.

For your convenience and to ensure the inclusion of all time sensitive items, you may fax an item to (718) 797-1713 during regular business hours or e-mail to Avery Eli Okin, Esq., CAE.